Judge: Robert B. Broadbelt, Case: 21STCV46483, Date: 2023-08-15 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 21STCV46483    Hearing Date: March 22, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

MOVING PARTIES:             Walmart Inc., Walmart Stores, Inc., Wal-Mart Associates, Inc., Tiffani Medina-Khuu (erroneously sued as Tiffani Khuu-Medina), and Katherine Whatley

RESPONDING PARTY:       Plaintiff Romina Zerpa

Demurrer to Second Amended Complaint

The court considered the moving, opposition, and reply papers filed in connection with this demurrer.

DISCUSSION

Plaintiff Romina Zerpa (“Plaintiff”) filed the operative Second Amended Complaint in this action on September 1, 2023, against defendants Walmart, Inc., Wal-Mart Stores, Inc., Wal-Mart Associates Inc. (together, the “Walmart Defendants”), Tiffani Medina-Khuu (“Medina-Khuu”)[1] and Katherine Whatley[2] (“Whatley”) (collectively, “Defendants”).  Defendants now move the court for an order sustaining their demurrer to Plaintiff’s second cause of action for harassment.

The court sustains defendants Medina-Khuu and Whatley’s demurrer to the second cause of action for harassment because it does not state facts sufficient to constitute a cause of action.  (Code Civ. Proc., § 430.10, subd. (e); Galvan v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 549, 563 [elements of prima facie claim of harassment].)

First, the court finds that Plaintiff has not alleged facts establishing that Medina-Khuu subjected Plaintiff to unwelcome harassment based on her sex and gender.  (SAC ¶ 39 [Medina-Khuu harassed Plaintiff and created a hostile work environment based on her sex and gender]; Galvan, supra, 37 Cal.App.5th at p. 563)  Although Plaintiff has alleged that Medina-Khuu “grabbed [Plaintiff’s] waist from behind for no necessary reason other than to harass her based on her sex and gender because of her history as [a] victim of domestic violence,” Plaintiff did not allege facts establishing that this contact was based on her sex or gender, and the court is not required to accept Plaintiff’s conclusion that this act was committed to harass her based on her protected characteristics.  (SAC ¶ 32; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078 [the demurrer does not accept as true “conclusions of law or fact”].)  

Second, the court finds that Plaintiff has not alleged facts establishing that defendant Whatley (1) subjected to Plaintiff to unwelcome harassment (2) based on her sex and gender, alleging only, in conclusory fashion, that Whatley harassed her and created a hostile work environment because she told Plaintiff to “relax” and ignore the customers and required her to work the front of the store.  (SAC ¶ 40; Galvan, supra, 37 Cal.App.5th at p. 563.)

The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.”¿ (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)¿ To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.”¿ (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)¿ The court finds that Plaintiff has not met her burden to articulate how she can amend her second cause of action to render it sufficient against defendants Medina-Khuu and Whatley and therefore sustains the demurrer as to those defendants without leave to amend.

The court overrules Walmart Defendants’ demurrer to the second cause of action for harassment because it states facts sufficient to constitute a cause of action since Plaintiff has pleaded sufficient facts establishing that Walmart Defendants may be responsible for the acts of nonemployees under the Fair Employment and Housing Act because she has pleaded that nonemployees subjected her to harassment based on her sex or gender, for which Walmart Defendants may be liable.  (Code Civ. Proc., § 430.10, subd. (e); Galvan, supra, 37 Cal.App.5th at p. 563; Gov. Code, § 12940, subd. (j)(1); M.F. v. Pacific Pearl Hotel Management LLC (2017) 16 Cal.App.5th 693, 702 [“the language of [section 12940, subdivision (j)(1)] provides for liability whenever an employer (1) knows or should know of sexual harassment by a nonemployee and (2) fails to take immediate and appropriate remedial action (3) within its control”].)

Plaintiff has alleged that Walmart Defendants’ customers subjected her to harassment on the basis of her sex or gender by routinely yelling at her, acting aggressively, and directing gender-based profanities toward her.  (SAC ¶¶ 31, 34.)  The court finds that the use of gender-based profanities directed to Plaintiff constitutes harassment on the basis of her sex or gender. The court notes that, in their moving papers, Walmart Defendants have argued that the mere use of that term does not necessarily constitute harassment because of sex, relying on Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 282 (Lyle).  However, the Lyle Court stated that (1) “a hostile work environment sexual harassment claim is not established where a supervisor or coworker simply uses crude or inappropriate language in front of employees . . . , without directing sexual innuendos or gender-related language toward a plaintiff or toward women in general[,]” and (2) “[i]n this connection, it has been cautioned the term ‘bitch’ is not so sex-specific and derogatory that its mere use necessarily constitutes harassment because of sex.”  (Lyle, supra, 38 Cal.4th at p. 282 [emphasis added].)  Here, Plaintiff has not alleged that the use of this gender-based term was simply used “in front of” her, but rather, was directed toward her specifically.  (Ibid.; SAC ¶¶ 31 [Walmart customers would “call her a ‘bitch’”] [emphasis added], 34.)  The court notes that this term “is not a neutral word in general” and, when used on its own “as a derogatory epithet directed against women[,]” “the word’s primary function is to express contempt for a woman or women in general.”  (Pantoja v. Anton (2011) 198 Cal.App.4th 87, 119.)  The court therefore finds that Plaintiff’s allegations that Walmart Defendants’ customers directed the gender-based profanity constitutes harassment on the basis of sex.[3] 

The court also notes that Walmart Defendants have argued that they, and their supervisors, had no control over the conduct of its customers and did not have any ability to stop the harassment.  (Demurrer, p. 10:21-23.)  However, this fact was not alleged in the Second Amended Complaint and Walmart Defendants have not pointed to any allegations establishing that they appropriately responded or could not do so.

Finally, the court notes that, in reply, Walmart Defendants assert that the second cause of action is based on three alleged violations of three separate primary rights, such that they are actually three separate causes of action.  Thus, Walmart Defendants state that, “to the extent that the Court finds that Plaintiff states a cause of action for one protected attribute, but not others, the Court must still sustain the demurrer as to each of the individual claims for which Plaintiff does not state sufficient facts.”  (Reply, p. 3:7-15.)  But Walmart Defendants, in their moving papers, did not (1) move the court for an order sustaining their demurrer to the second cause of action on the ground of uncertainty since it attempts to allege three harassment causes of action in one, or (2) expressly state, so as to give Plaintiff notice, that they were requesting that the court (i) find that the second cause of action to be alleging three separate causes of action and therefore (ii) sustain their demurrer to each separate claim.  Thus, the court does not make a ruling as to whether Plaintiff has alleged facts sufficient to constitute a cause of action for harassment on the basis of disability since the court has found, as set forth above, that she has alleged facts sufficient to constitute a cause of action for harassment on the basis of sex or gender.  (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”].)

ORDER

            The court sustains defendants Tiffani Medina-Khuu and Katherine Whatley’s demurrer to plaintiff Romina Zerpa’s second cause of action for harassment without leave to amend.

            The court overrules defendants Walmart, Inc., Wal-Mart Stores, Inc., Wal-Mart Associates Inc.’s demurrer to plaintiff Romina Zerpa’s second cause of action for harassment.

            The court orders defendants Tiffani Medina-Khuu and Katherine Whatley to give notice of this ruling.

IT IS SO ORDERED.

DATED:  March 22, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court